JOHN S. KIRBY and VICKY L. KIRBY, husband and wife, Plaintiffs-Respondents,
MARK SCOTTON and DAWN SCOTTON, husband and wife, Defendants-Appellants.
Opinion No. 12
from the District Court of the Fourth Judicial District,
State of Idaho, Ada County. Hon. Lynn G. Norton, District
denying motion to set aside default and judgment, affirmed.
Law, P.C.; Trevor L. Hart, Boise, for appellants. Trevor L.
Humphrey, LLP; David M. Penny, Boise, for respondents. David
M. Penny argued.
Scotton and Dawn Scotton appeal from the district court's
order denying their motion to set aside an order of default
and from the final default judgment. For the reasons set
forth below, we affirm.
AND PROCEDURAL BACKGROUND
8, 2016, John S. Kirby and Vicky L. Kirby filed a complaint
against the Scottons asserting claims for trespass, nuisance,
negligence, and a request for injunctive relief. The Kirbys
asserted that the Scottons' irrigation practices resulted
in water flooding onto the Kirbys' property, causing
damage. Counsel for the parties communicated on July 13,
2016, regarding a possible resolution of the case. The
complaint was delivered to the Scottons' counsel on July
14, 2016, but counsel never signed the acceptance of service.
The Kirbys' counsel served the Scottons directly with the
complaint on August 31, 2016, after the Scottons' counsel
failed to accept service or file an answer. No answer or
notice of appearance was filed within the timelines required
by the Idaho Rules of Civil Procedure.
Kirbys moved for entry of default on October 24,
2016. The Scottons' counsel contacted the
Kirbys' counsel on October 26, 2016, stating that the
Scottons' counsel had not filed an answer because he had
been waiting to hear from the Kirbys' counsel in regard
to whether the case had been resolved. The Kirbys'
counsel agreed to withdraw the motion for default and gave
the Scottons one week to file an answer. The next day, the
Kirbys' counsel emailed the following to the court clerk,
advising: "Please withdraw our Motion for Entry of
Default against Mr. and Mrs. Scotton. We are in negotiation
to secure an answer to our complaint. The answer will be
filed next week sometime or if not we will refile our Motion
for Entry of Default." On November 4, 2016, the
Kirbys' counsel emailed the court clerk and indicated
that the Kirbys intended to proceed with the default because
no answer had been filed. Counsel's email asked, "Do
I need to 'refile' my documents or my [sic] I just
request that they be provided to the judge." The court
clerk responded that she could "just provide them to the
Judge." The Scottons' counsel was not included in
the November 4 email exchange. The district court entered
default on November 18, 2016.
Scottons filed an answer on December 1, 2016, and filed an
I.R.C.P. 55(c) motion to set aside the default on December 6,
2016. In their motion to set aside default, the Scottons
asserted that the Kirbys took action in the case without
notice to the Scottons after they had informed the Kirbys of
a potential resolution. The Scottons also argued that their
answer asserted several meritorious defenses; their failure
to file an answer earlier was not willful, but was due to
miscommunication; and that the Kirbys would not suffer any
prejudice if the default was set aside. Although the
Scottons' counsel filed an affidavit in support of the
motion to set aside, to which he attached a letter he sent to
the Kirbys' counsel setting forth the Scottons'
position regarding the dispute, the motion was not supported
by an affidavit from the Scottons. In response to the motion,
the Kirbys argued that the Scottons' counsel had told the
Kirbys' counsel that the Scottons' counsel was
uncertain as to whether he was representing the Scottons and,
because of this, the Kirbys served the Scottons directly. The
Kirbys also asserted that the Scottons filed their answer
seventy-two days late and that, had the Kirbys not filed the
lawsuit, the Scottons would not have done anything to prevent
further damage to the Kirbys' property.
district court held a damages hearing on December 15, 2016,
and argument on the motion to set aside the default was heard
on January 19, 2017. The district court denied the
Scottons' motion to set aside default, finding that the
Scottons failed to show good cause for not accepting service
through their counsel and not filing a notice of appearance,
a motion to extend time to answer, or an answer between July
19 and November 4, 2016. The district court also concluded
that the Scottons failed to plead, with particularity, a